State v. Dyer

80 S.E.2d 769 (1954)

239 N.C. 713

STATE v. DYER.

No. 219.

Supreme Court of North Carolina.

March 24, 1954.

*770 Harry McMullan, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.

Doffermyre & Stewart, Dunn, for defendant appellant.

DENNY, Justice.

We think the defendant's exception to the order of consolidation is well taken and should be upheld.

It is provided by G.S. § 15-152 that when there are several charges against any person for the same act or for two or more transactions connected together, or for two or more transactions of the same class of offenses, which may be properly joined, the court will order them to be consolidated for trial. State v. Truelove, 224 N.C. 147, 29 S.E.2d 460; State v. Norton, 222 N.C. 418, 23 S.E.2d 301; State v. Chapman, 221 N.C. 157, 19 S.E.2d 250.

In State v. Truelove, supra, two men and a woman were charged with abducting a little girl under fourteen years of age, who, at the time, was skating along the sidewalk *771 near her grandmother's home; the two male defendants were also indicted for an assault on the child with intent to commit rape. The cases were consolidated and tried together as both charges arose out of the same transaction or a series of connected transactions. The consolidation was upheld and properly so.

Likewise, it is pointed out in State v. Combs, 200 N.C. 671, 158 S.E. 252, 254, that "The court is expressly authorized by statute in this state to order the consolidation for trial of two or more indictments in which the defendant or defendants are charged with crimes of the same class, which are so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible at the trial of the others", citing State v. Cooper, 190 N.C. 528, 130 S.E. 180; State v. Jarrett, 189 N.C. 516, 127 S.E. 590; State v. Malpass, 189 N.C. 349, 127 S.E. 248.

In the case of State v. Norton, supra, Winborne, J., in speaking for the Court, said [222 N.C. 418, 23 S.E.2d 302]: "The offenses charged are of the same class, relate to an assault upon the same person, and appear to be so connected in time and place as that evidence at the trial upon one of the indictments would be competent and admissible at the trial of the other. In such cases there is statutory authority for consolidation", citing authorities.

We think the present case is factually distinguishable from the cases cited and relied upon by the State. It is true the defendants Dyer and Gray were charged with separate offenses of the same class, but with having been committed at different times and places. Moreover, the State offered no evidence tending to show that there had been or was a conspiracy between these defendants, or between them and other parties to commit the alleged crimes. The indictments were not against the same person but were against different individuals. Separate and distinct offenses were charged, complete in themselves and independent of each other, and not provable by the same evidence. McElroy v. United States, 164 U.S. 76, 17 S. Ct. 31, 41 L. Ed. 355; Wharton's Criminal Procedure, Vol. I, 10th Ed., Section 352, page 405 et seq. The State offered a great deal of evidence to the effect that numerous sales of merchandise stolen from the Colonial Stores, Inc., were made to Ted Gray and others, which evidence was not admissible against the defendant Dyer and the court so ruled with respect thereto many times during the progress of the trial. Even so, in our opinion the defendant was prejudiced by the order of consolidation. See State v. Bonner, 222 N.C. 344, 23 S.E.2d 45. Hence, the defendant is entitled to a new trial and it is so ordered.

New trial.